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Filosa v. Pecora

FEBRUARY 21, 1974.

ANTHONY FILOSA ET AL., PLAINTIFFS-APPELLANTS,

v.

CARLO PECORA ET AL., DEFENDANTS-APPELLEES. MICHAEL J. LOWY ET AL., INTERVENING-PLAINTIFFS-APPELLEES,

v.

ANTHONY FILOSA ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order which vacated a consent decree. The order was entered pursuant to a petition filed under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, sec. 72).

In August 1971, six neighbors: Anthony Filosa, Angelo Morelli, Willis M. Hoffbeck, Martin D. Galis, Paul Pennick and Joseph Graber, entered into a contract with the defendant, Carlo Pecora, to buy a parcel of unimproved land, approximately 600 feet long and 100 feet wide, which bordered on the rear of their six homes. The contract, which was not recorded, provided for Pecora to convey the purchased land in separate deeds and that each deed would be contiguous with the lot of each of the six neighbors.

In September 1971, Pecora contracted to sell a larger tract of land, including the 600-by-100-foot strip, to two real estate developers, Michael J. Lowy and John A. Canna, who intended to construct several condominium apartment buildings on the property.

When Pecora failed to convey the realty they had purchased, Filosa, Morelli, Hoffbeck and Galis sued him for specific performance. Pennick and Graber chose not to join in the litigation.

Pecora answered the complaint and Lowy and Canna intervened. Pecora charged that the time limit for the completion of the plaintiffs' purchase had expired and that the required earnest money had not been deposited. The intervenors alleged that the plaintiffs' contract was invalid and that they did not learn of the contract until their petition to rezone the entire tract of land from a single-family residence district to one which would permit a condominium development was about to be heard by the Zoning Board of Appeals of Cook County. The plaintiffs denied Pecora's affirmative defenses and the intervenors' allegations.

During the trial on the issues, settlement negotiations were held between the attorney for the plaintiffs and the attorney who represented Pecora, Lowy and Canna. Under the aegis of the court, an agreement to settle the dispute was reached, subject to its being reduced to writing. Both attorneys participated in the drafting of the agreement. Each prepared a draft, exchanged it with the other attorney, and each made comments and suggestions on the other's draft. The final agreement, drawn by the plaintiffs' counsel, included the suggestions of the defendant's and intervenors' counsel.

The final settlement provided that the 600-foot strip of land would be narrowed from 100 to 25 feet and that the four plaintiffs and Pennick and Graber would receive individual deeds for 25 feet behind each of their homes and that the six of them would receive $6,000 in damages. The agreement further provided that in the event the intervenors failed to apply for building permits within 120 days after the rezoning of the property was obtained, the 600 x 100-foot parcel would pass to the plaintiffs and their two neighbors for their contracted purchase price subject only to current real estate taxes. A consent decree incorporating the terms of the agreement was entered on May 9, 1972.

For various reasons, including the hospitalization of Pecora, the intervenors' counsel did not show the consent decree to Pecora or the intervenors until the first week of June. They protested that building permits could not be obtained within 120 days of the rezoning. On June 9, 1972, their attorney filed a motion to vacate or modify the decree. On July 11th he filed a petition under section 72 of the Civil Practice Act to vacate the order of May 9. He also filed an amended complaint and an amended section 72 petition naming Pennick and Graber as defendants. The petition was continued several times and compromises were discussed, but none was agreed upon.

The section 72 petition asserted that there was fraud in the procurement of the consent decree and that it was void because it disposed of the rights of Pennick and Graber over whom the court had no jurisdiction. The petition was granted and the decree was vacated.

The facts concerning the preparation and presentation of the decree do not support the intervenors' charge that it was procured by fraud. The gist of the charge was that the plaintiffs did not honor an oral understanding to modify the time restriction for the obtaining of the building permits; that the 120-day limitation was unreasonable and unconscionable; that it proved to be unsatisfactory to the intervenors who needed 240 days because of the time-consuming prerequisites to the acquisition of building permits such as soil testing and securing environmental control permits. The petition alleged that the attorney for the intervenors only glanced cursorily at the decree and relied upon the representation of the plaintiffs' attorney to amend the restriction if the intervenors so desired. In seeming contradiction, the petition also declared that the "settlement agreement was the entire terms agreed on between the parties."

The plaintiffs' answer denied any understanding to modify the decree. The plaintiffs stated that the final written agreement was the joint effort of both attorneys, and that their attorney advised opposing counsel that he had no authority to change the terms of the written agreement without the approval of all his clients. Exhibits were attached to their answer which substantiated their contentions. One exhibit proved that the original time limitation was 60 days and that it was increased to 120 days at the suggestion of the intervenors' counsel. Another showed the interpolations made by him in the drafts of the agreement, and the order which dismissed the case was in his handwriting. The order stated that the dismissal was "on stipulation of the parties through their respective attorneys" and was "with prejudice to all the parties as said matter has been settled."

• 1, 2 A consent decree is based upon the agreement of the parties. It may supersede both pleadings and evidence and even go to the extent of pointing out and limiting the relief to be granted. Such a decree is conclusive upon the parties and cannot be amended or varied without the consent of each of them. (People ex rel. Stead v. Spring Lake Drainage & Levee District (1912), 253 Ill. 479, 97 N.E. 1042.) A consent decree reflects the determination of the parties to end their controversy. It is like a written contract and should be enforced as written. City of Kankakee v. Lang (1944), 323 Ill. App. 14, 54 N.E.2d 605.

• 3 A written contract cannot be set aside on the ground that it is fraudulent where the alleged fraudulent provision appears on the face of the contract so that it was equally open to the knowledge of both parties, or where the party charged with the fraud neither urged its acceptance upon the other nor misled or induced the other to accept and execute it by any statement or misrepresentation as to its meaning or legal effect. (Paine v. Doughty (1911), 251 Ill. 396, 96 N.E. 212.) Likewise, a court will not vacate a consent decree without a showing of fraudulent misrepresentation or coercion in the making of the agreement, or the incompetence of a contracting party or ...


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